Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-24
TIE SUPREME COURT.
synopses of Decisions Rendered at tn
Present Austin Sitting.

synOpses of Decisions Rendered at tn
Present Austin Sitting,
A. H. Willie, chief justice; j. W. Stay
ton and R. R. Games, associate justices
c.. S. Morse, clerk; NJ NJ. Johnson, bailiff
Fort Worth Street Railway Compan,
vs.. R lsedale Street Railway Company
from Tarra1t county. Opinion by Stay
ton, a. J. The appellant was incorporated
June 8, 1874 and appellee March 20,l8S4
This action involves a contest between
the parties as to the right-tO use Houston
and WeatherfOrd streets and Jenning:
avenue in Fort Worth for their roads
Appellant bases its claim on city
ordina ce No. 60, approved July Is, 1884
This ordinance in section l substantially
grants appellant the right to construct
maintain, etc, "one or more lines Of
street railway" CON either of the follow
ing named streets, and their extensions
to wit: Belkn8p and WeatherfOrd streets
running east and west, and Houston
Main and Rusk streets and Jennings
avenue, running north and south, and
such other streets as may be designated
by ordinance, ETC.; provided said com
Dany shall construct Sat least one line Of
railway on one Of the above named
streets" running from the public square
to the Texas and PacifiC Railway
depot within eighteen months, etc.
Sec. 2. That the city council res erve
the right to determine when the require
ments of traffic neces5Itate any further
track than the one selected and built by
appellant in pursuance of the rights
granted it, and shall notify appellant of
their judgment and specify the street and
if the notice is not complied with III
twelve months tGeir rights to those
streets will be forfeited. Appellant Sc
lected Main street on which to build rail
way to depot.
Appellee claims the right to use the
streets in controversy under several or
dinances, one of which, in terms, gives
the right TO construct railway down the
center of Houston street. The COnten-
ton arose in this wey. Appellee was
constructing line of railway in pursu-
ance to ordinance granting the rig0t and
was within 500 feet of Houston
street, and that appellant about
l O'Clock, August 10, 1884, set to work to
dig up nine blocks down the center of
Houston street. Appellee was acting
uuder legal advice, and appellant in do
ing work on Houston street was acting
This action was brought by appel
lee under au agreement to settle rights of
the parties, and was finally disposed of
May Is, 1885, Judgment being entered
perpetually eDjoiniDg appellant from con-
structing a railway on any of the
streets to which light is asserted by
appellee, and this appeal was taken
The question is did ordinance No. CO.
in, ~ 10
superior to the right conferred on ap-
pellee by its ordinance or is the right
conferred Oy ordinance No. so, lost. The
question refers only to that part of HOus-
ton street which the ordinance gives to
appellee. The solution of this question
Involves two inquiries:
L. What rights did appellant take
under ordinance No. 60?
2. If it acquired the right to use either
or all of the streets mentioned, did it
acquire the right to use any particular
part of these streets before an actual ap-
preparation. By its act of Incorporation
appellee acquired merely q corporate eX-
istence, it could give no right to use
street, Tor this right could only be
acquired by the consent of the city of
Fort Worth.
TO run on all the streets named il ordi-
nance No. so. Appellees claim that APP
pellants only acquired the right to build
one line of road east and west and one
north and south, and the right to the
latter attaches to the stree tseleC ed (Naip
street, and not to Houston street, parallel
with it, and it has forfeited the right to
streets east and west. In order to in
+arOrnt the ordinance oil re- ruOr5S
be considered. In section l it says
tracks may be laid son either"
of the named streets. EITHER"
does not mean all but one
or the other of two or more, and the
only fair construction to put on the
section is that zone or more" lines may
be constructed on one or the other of the
streets named and not on all. The
proviso to section l evidently shows that
more than one line might be constructed
on the same street. The first section
makes whatever grant is made and the
right to operate one or more lines on
every street named in 1t is not intended
Section 2 assumes that one of the streets
would be selected, and this assumption
only arises because it is made necessary
by the ordinance. The words sin the
first instance" ia this section refer
to the line on Msiu street ana give
the city the right to select &
line "east and west" in addition
TO the one north and south !
no construction of the second section |
gives appellant the right to operate lines /
on each and all the streets named, aud /
even If this construction is wrong, there
can be no doubt that the city has the |
power to make the grant made, and if the /
city deemed il necessary both companies /
could operate any one Of the streets, IN
less one has prior grant. In this case /
there was no express grant to appe liant |
as TO Houston street, while appellees had /
grant of the center of the street and |
therefore has right to the use of so /
much of that street as it asserts a right !
to, and the judgment Of the court is cor
rect and must be affirmed.
Fort Worth Street Railway Company
VS.. Rosedale Street Railway Company,
from Tafrant county. Opinion by Stay
ton, A. j. This was to decide motion |
to show cause why appellant should not
oe punished for contempt, arising out of
the foregoing case:
When the parties to this case sgreed to |
submit the matter there was an applica-
ton by each party for an Injunction, and |
apnellee instituted suit 20 O 1roa